It’s a debate that’s reignited at virtually every sitting: the Judicial Service Commission’s constitutional mandate to ensure that the judiciary broadly reflects the racial and gender demographics of the country.
Gossip in legal circles usually spreads like wildfire as issues of race and gender play out day after day for the week that the commission sits to publicly interview candidates for the Bench.
And the intrigue and conflict make for sensational headlines.
This week was no different and the JSC saw it coming.
So much so that it mandated one of its own commissioners, Eastern Cape-based lawyer Izak Smuts, to compile a report on transformation of the judiciary.
In it he said there was a “very real perception in certain quarters” that the JSC was “set against” the appointment of white male candidates, except in exceptional circumstances.
He added that the April 2011 interviews, when the JSC decided to leave two positions for the Western Cape Bench vacant even though four white male candidates were available for appointment, did little to dispel the perception.
Only one position was filled by a black male candidate and, at its next sitting, one of the previously rejected candidates – Owen Rogers – was appointed.
It was that approach by the JSC that the Supreme Court of Appeal later found to be irrational and unlawful.
“If there were reasons other than the race and gender of those available, fit, proper and suitably qualified candidates for failing to fill the vacancies, they have not been publicly articulated,” Smuts said.
He suggested that the JSC have an honest debate about its approach to the appointment of white male candidates.
“If the majority view is that, for the foreseeable future, white male candidates are only to be considered for appointment in exceptional circumstances (an approach I consider to be unlawful and unconstitutional), the JSC should at the very least come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected.
“The JSC may well find itself at the receiving end of judicial criticism for making public such an approach, but it would at least be out in the open. One way or the other, the JSC must deal with the uncomfortable perception that the graffiti on its wall reads: ‘White men can’t judge,’” he said in the report.
The report was to be debated in a closed session.
Instead by last Monday – when the JSC met for its first day of interviews – the contents of the report were already public knowledge, having been leaked.
Days later, Chief Justice Mogoeng Mogoeng responded, saying that “white males are in fact regularly recommended by the Judicial Service Commission for appointment” and that the commission “is not pursuing and never has pursued a so-called covert political agenda”.
In a prepared statement, the chief justice said the JSC had to consider the obligation of section 174 (2) of the constitution to “reflect broadly the racial and gender composition of South Africa” when judicial officers were appointed – and that it would continue to do so.
At a press briefing, he said that merit counted but that transformation was as important.
But when Smuts dramatically resigned as a JSC member on Friday, citing a host of reasons, including that it had become apparent to him that his understanding of the constitutional issues was far removed from the understanding of the majority of the commission, critics in legal circles blamed the crisis on the absence of a precise and proper interpretation of the section and sub-sections of the constitution that apply to the appointment of judges.
Section 174 (1) states that “any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer”.
Section 174 (2) says “the need for the judiciary to broadly reflect the racial and gender composition of South Africa must be considered when judicial officers are appointed”.
And the critics say that precisely how these sub-sections sit together needs to be spelt out clearly so that everyone on the JSC is on the same page.
Smuts, in his report, says it is not a constitutional imperative that the JSC is required to promote the appointment of black and woman candidates.
Instead the second sub-section states that the need for the judiciary to broadly reflect the racial and gender composition of South Africa must be considered.
Smuts suggested an intensified focus on diversity development, such as the restructuring of briefing patterns in the office of the State attorney, and engagement by the JSC and the Justice Department with the law societies to bring about similar briefing patterns in the private sector.
Paul Hoffman of the Institute for Accountability in Southern Africa says the preamble to the constitution states that South Africa belongs to all who live in it “united in our diversity”.
“You unite people when everybody becomes colour blind and they don’t care about the colour of their judges but rather about whether they are competent for the job,” he said, adding that a transformation of mindset was necessary.
He believes commissioners should first look at section 174 (1) and, once they have established that a candidate is appropriately qualified, fit and proper to be a judge, they should turn to section 174 (2).
The two sub-sections cannot be applied in isolation.
Referring to Smuts’s resignation, he said: “It is to be hoped that the JSC will remedy the situation by providing its reasoned response to the thoughts of Smuts rather than excoriating him for his transparency.”